Can I Secretly Record A Conversation At Work?

I thought I'd discuss a question today that I'm asked all the time in my law practice: Can I record a conversation with my employer?

Unfortunately, there's no easy answer to this question, and a mistake can land you in jail. Illegal tape recording can have both criminal and civil penalties. My advice is almost always: When in doubt, don't.

Still, many employees want to record a boss or HR at work, and there are good reasons to do so. If you have a sexual harasser, it's handy to catch them red-handed. It's hard to deny something a judge or jury can hear in the harasser's own voice. Some employees want to record meetings with HR to make sure they get all the important information or to have evidence of the reason given for termination or discipline. Other employees want to get evidence of discrimination or other illegal practices of the employer. Sadly, while you can go to jail if you illegally record a conversation, even of a bigot, there is no law making workplace discrimination a crime in the U.S.

Here's what you need to know about recording conversations at work:

All-party consent: Eleven states, California, Connecticut, Florida, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington, require all parties to the conversation to consent to being taped. Illinois' all-party consent law was found to be unconstitutional. Hawaii, a one-party consent state, requires all-party consent if the device is installed in a private place. Massachusetts bans "secret" recordings. These laws are sometimes referred to as "two-party consent" laws, but if there are three people in the conversation, all three must consent. The Digital Media Law Project has a handy state-by-state resource here. The Reporter's Committee for Freedom of the Press has another detailed state-by-state guide here.

Expectation of privacy: You can almost always record conversations in public areas, because the courts say there's no "expectation of privacy" in those places. Whether or not you are a party to the conversation, if it's out there in public, you may be allowed to tape it. Here's where it gets tricky. Many courts have held that there's little or no expectation of privacy in the workplace. There are cases saying, for instance, that a party to a conference call has no expectation of privacy. If you're in a group meeting at work, is there an expectation of privacy? Possibly not.

As an example, cases in my home state of Florida on the expectation of privacy at work say things like: "Society does not recognize an absolute right of privacy in a party's office or place of business." "[A]lthough defendant may have had reasonable expectation of privacy in his private office, that expectation was not one which society was willing to accept as reasonable or willing to protect." "Society is willing to recognize a reasonable expectation of privacy in conversations conducted in a private home. However, this recognition does not necessarily extend to conversations conducted in a business office."

The problem I have with relying on cases like these to tape at work is the use of weasel-words like "necessarily" and "absolute" and "reasonable." These cases are very fact-specific and that means a court could still find that your boss or coworker had an expectation of privacy. If you get it wrong, you can end up in jail. 

If a meeting is held with a large group of employees, doors open so others can hear or wander in, then I feel pretty comfortable that there's no expectation of privacy. Otherwise, I suggest talking to an employment lawyer in your state about making such a recording.

Unfair Labor Practices: The National Labor Relations Board has waffled on whether employers can ban all recordings at work. In 2015, they said no, such recordings can't be banned. Then in 2021 they said sure, employers can ban recordings. This current board would probably say recordings can't be banned. But since the case law changes depending on who appointed board members, I wouldn't risk criminal prosecution based on this.

Retaliation: If you record a conversation to document illegal discrimination or illegal harassment (we're talking harassment or discrimination based on race, age, sex, religion, national origin, disability, pregnancy, or other protected category, not bullying), then you may or may not be protected against retaliation by your employer. The courts have split on this issue. Depending on your state, your employer may be allowed to fire you for recording a conversation at work.

One-Party Consent: If your state is a one-party consent, you still have to be a party to the conversation in order for a recording to be legal. If you aren't, you can't just place a recording device somewhere at work to record secretly. That's illegal in every state.

Phone Calls: The all-party consent states all make recording phone calls without consent of all parties illegal. There's no expectation of privacy exception for phone calls. Fifteen states require all-party consent of phone calls. The one-party consent states that ban such recordings are Delaware, Illinois, Oregon, and Vermont. A state-by-state guide is here.

To summarize, you can probably tape a conversation at work that you're part of as long as you live in one of the 39 one-party consent states. You can also possibly tape a conversation that's in a public area (lobby, office or conference room with doors open, stairwell). You can maybe tape a conversation in the office behind closed doors. Only 35 states allow recording of phone calls with one-party consent. If you get it wrong, you're in big trouble, so be careful.

My best recommendation in all-party consent states continues to be, when in doubt, pull out your recorder and turn it on. Say, on the recording, "You don't mind if I tape this do you?" If the other person or people say they don't mind, keep recording. If anyone objects, turn it off. Pull out a pad of paper and a pen and take good notes instead. No potential case against your employer is worth risking jail time.

Recording Meeting In Office Protected by National Labor Relations Act

For those of us in all-party consent states like Florida, it's always an issue whether employees may record conversations with supervisors surreptitiously. Now employees have another weapon in their arsenal to support the legality of office recordings: the National Labor Relations Act (the Act).

In a recent decision, a National Labor Relations Board Administrative Judge held that a recording of a meeting where unionization was being discussed was both legal and protected by the Act, even though company policy prohibited such recordings:

Section 7 of the Act reads as follows: 

Employees shall have the right, to self-organization, to form, join, or assist labor 35 organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a 40 condition of employment as authorized in section 8(a) (3). 

29 U.S.C. § 157. Thus, employees have a statutory right to engaging in union and protected concerted activities, or to refrain from any and all such activities. Cf. Stanton Industries, Inc., 313 NLRB 838, 848 (1994) (noting the Board has “pointed out over and employees have the 45 right to engage in union activities, as well as the right to refrain from engaging in union activities, which rights are guaranteed by Section 7 of the National Labor Relations Act.) JD(SF)–21–19 14 

Regarding Mansour, I find that his actions were protected by Section 7 of the Act. In the January 9 captive-audience meeting Respondent was presenting its position to employees and attempting to persuade them to vote the Union out. Mansour had never previously been in a 5 union, he is dyslexic, and English is his second language. He decided to record the meeting to listen to it more carefully later and get a better understanding of what being discussed. Mansour was simply documenting the meeting in order to study Respondent’s position, so he could make an educated choice when voting to either retain or decertify the Union. Respondent argues his actions are not protected because he did not discuss his intentions to record the meeting with 10 anyone else. However, I find Respondent’s argument misguided.

The judge also found that the recordings were legal under Washington law because the subject matter, unionization, was not private and the employer could not restrict employees from discussing what happened in the meeting. Further, the judge determined there was no expectation of privacy in the meeting.

So, while this decision only applies where the meeting is about unionization or working conditions on behalf of coworkers as well as yourself, and only if you aren't in management, and only if you work for an employer covered by the Act (which is most non-government employers), it may keep you from being fired (or prosecuted) if you get caught recording a workplace meeting.

Is It Legal To Record A Conversation At Work?

In light of Omarosa's recordings of conversations with her bosses at the White House, I thought I'd discuss a question I'm asked all the time in my law practice: Is it legal to record a conversation at work?

Unfortunately, there's no easy answer to this question, and a mistake can land you in jail. Illegal tape recording can have both criminal and civil penalties. My advice is almost always: When in doubt, don't. 

Still, many employees want to record a boss or HR at work, and there are good reasons to do so. If you have a sexual harasser, it's handy to catch them red-handed. It's hard to deny something a judge or jury can hear in the harasser's own voice. Some employees want to record meetings with HR to make sure they get all the important information or to have evidence of the reason given for termination or discipline. Other employees want to get evidence of discrimination or other illegal practices of the employer.

Here's what you need to know about recording conversations at work:

One-party consent: In most states, as long as you're a participant in the conversation, you can record at will. South Carolina is one of these states, but the employee who was arrested taped a conversation between other employees, not herself. That's not allowed, even in one-party consent states

All-party consent: Thirteen states, California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Oregon, Pennsylvania, and Washington, require all parties to the conversation to consent to being taped. Hawaii, a one-party consent state, requires all-party consent if the device is installed in a private place. A Florida government employee was arrested a few years ago for giving a reporter a tape recording of a conversation she had with a supervisor. She cut a deal for community service, so we don't know how her trial would have turned out. These laws are sometimes referred to as "two-party consent" laws, but if there are three people in the conversation, all three must consent. For a detailed state-by-state survey of workplace surveillance laws, Justia has a summary of laws by state that can give you more details on your state law. The Digital Media Law Project has another handy state-by-state resource here but it is out of date.

Expectation of privacy: You can almost always record conversations in public areas, because the courts say there's no "expectation of privacy" in those places. Whether or not you are a party to the conversation, if it's out there in public, you may be allowed to tape it. Here's where it gets tricky. Many courts have held that there's little or no expectation of privacy in the workplace. There are cases saying, for instance, that a party to a conference call has no expectation of privacy.

As an example, cases in my home state of Florida on the expectation of privacy at work say things like: "Society does not recognize an absolute right of privacy in a party's office or place of business." "[A]lthough defendant may have had reasonable expectation of privacy in his private office, that expectation was not one which society was willing to accept as reasonable or willing to protect." "Society is willing to recognize a reasonable expectation of privacy in conversations conducted in a private home. However, this recognition does not necessarily extend to conversations conducted in a business office."

The problem I have with relying on cases like these to tape at work is the use of weasel-words like "necessarily" and "absolute" and "reasonable." These cases are very fact-specific and that means a court could still find that your boss or coworker had an expectation of privacy. If you get it wrong, you can end up in jail. That Florida employee who was arrested for taping in a public building should give you pause about relying on these "no expectation of privacy" cases too heavily.

Retaliation: If you record a conversation to document illegal discrimination or illegal harassment (we're talking harassment or discrimination based on race, age, sex, religion, national origin, disability, pregnancy, or other protected category, not bullying), then you may or may not be protected against retaliation by your employer. The courts have split on this issue. Depending on your state, your employer may be allowed to fire you for recording a conversation at work (even though they can't fire you for reporting discriminaiton).

Getting permission: One way to get around problems in all-party consent states is, when in doubt, pull out your recorder and turn it on. Say, on the recording, "You don't mind if I tape this do you?" If the other person or people say they don't mind, keep recording. If anyone objects, turn it off. Pull out a pad of paper and a pen and take good notes instead. 

Creative ways around: I had a case where one creative employee knew the harasser was approaching her office so she called a friend and put her on speaker to listen. That way she had a witness. Even taking notes helps bolster a case. Your notes can be evidence. 

Other evidence: Don't forget to save things like text messages (take screen shots and print), emails, Snapchat and other social media. Don't let that stuff be auto-deleted or lose it when you drop your phone in a toilet. It's your burden to prove your case, and losing evidence can be held against you. Have nothing in writing and no witnesses? Your own testimony is evidence. If you come across as credible, that could be enough.

To summarize, you can probably tape a conversation at work that you're part of as long as you live in one of the 37 one-party consent states. You can also possibly tape a conversation that's in a public area (lobby, office or conference room with doors open, stairwell). You can maybe tape a conversation in the office behind closed doors. If you get it wrong, you're in possible criminal trouble, so be careful. Even if you get it right, you can probably be fired for the recording.

Will Recording A Conversation At Work Land Me In Jail?

In light of the arrest of a South Carolina government employee for tape recording a conversation between co-workers, I thought I'd discuss a question I'm asked all the time in my law practice: Can I record a conversation with my employer?

Unfortunately, there's no easy answer to this question, and a mistake can land you in jail. Illegal tape recording can have both criminal and civil penalties. The employee in South Carolina faces up to five years in prison and a $5,000 fine. My advice is almost always: When in doubt, don't.
Still, many employees want to record a boss or HR at work, and there are good reasons to do so. If you have a sexual harasser, it's handy to catch them red-handed. It's hard to deny something a judge or jury can hear in the harasser's own voice. Some employees want to record meetings with HR to make sure they get all the important information or to have evidence of the reason given for termination or discipline. Other employees want to get evidence of discrimination or other illegal practices of the employer.

If you want to know more about recording conversations at work, read my AOL Jobs article here.

I Secretly Taped My Boss And Now I Want to Sue

I have people come into my office all the time about sexual harassment, discrimination or other issues who proudly pull out a DVD or tape and say, “I have it all on tape.” I usually jump back about two feet, as if the thing were a cobra (not the kind relating to insurance). That’s because taping someone without their consent is a crime in my state. The tape will probably not be admissible in court, and could well land my client in jail.

I want nothing to do with recordings unless everyone whose voices appear on them consented to be recorded.

That’s not true in every state. The question you need to ask yourself before you secretly record a conversation is whether your state has “one party” or a “two party” consent. One party consent simply means that, if any party to the conversation agrees to be taped, it’s okay. Two-party consent (also called all-party consent) requires every person who participates in the conversation to agree to be taped.

Here’s how these laws apply. In a two-party/all-party consent state, you can’t go into a disciplinary interview with a recorder hidden in your pocket to tape your employer’s sexual harassment or admission that they set you up. In a one-party consent state, as long as you are in the conversation you can tape it. You can’t stand in the shadows and tape a conversation you aren’t participating in to eavesdrop on what is being said. Placing a bug or hidden tape recorder in a room and leaving is always illegal unless there is a court order.

The following states require consent of all parties to a conversation (two party consent) in order for the conversation to be recorded: 

California
Connecticut
Delaware
Florida

Illinois (By statute. However, in practice the courts of Illinois allow most individuals and businesses, not law enforcement, to use one party consent.)
Maryland
Massachusetts
Michigan
Montana
New Hampshire

Pennsylvania
Washington

States that allow one party to consent are:

Alaska
Arkansas
Colorado
District of Columbia

Georgia
Hawaii
Idaho
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Minnesota
Mississippi
Missouri
Nebraska
Nevada
New Jersey

New Mexico

New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
West Virginia
Wisconsin
Wyoming

The federal law on taping, the Electronic Communications Privacy Act, has some exemptions. If a phone line is recorded for customer service, for use as a 911 line, or by court order, then the recording may be allowed. However, there are many suits over these exceptions. (This also means that most employers who tape employee conversations get it wrong, but that’s another post for another time.) Your state law may have some exemptions too, but probably not for you as an employee.

How do you properly tape record a conversation in a two-party consent state? You pull out the recorder, hit the “record” button and say, “You don’t mind if I record this, do you?” If they say they don’t mind, record away. If they do mind, then shut it off and put it away.

People say the darndest things and then deny later, so the temptation to secretly record them is strong. You might want to have a witness come along instead if you’re in a two-party consent state. I know it’s not ideal, but it beats landing in jail.